Before this Court are motions to dismiss filed by (1) West Shore
Regional Police Commission and Police Chief Howard Dougherty (Doc. No.
34), and (2) Cumberland County (Doc. No. 36); the Report and
Recommendation of Magistrate Judge Mannion (Doc. No. 63); and Plaintiffs'
objections thereto (Doc. No. 64). For the reasons discussed below, this
Court will adopt the Report and Recommendation in part and sustain the
Plaintiffs' objections.

I. Factual Background

This Court adopts the factual background as found by the Magistrate
Judge as follows:

Plaintiffs' decedent, Ryan K. Schorr, ("Schorr"),
suffered from bipolar disorder. Schorr's condition
deteriorated shortly before November 18, 2000, and his
roommate and family applied for his involuntary
committal pursuant to § 302 of the Pennsylvania
Mental Health Procedures Act. A crisis intervention
worker employed by Holy Spirit Hospital took and
evaluated the application, and caused an order for
involuntary commitment to be issued. The worker then
contacted the Cumberland County Control Unit and
arranged for West Shore Regional Police Department
officers to detain Schorr pursuant to the commitment
order and related warrant.

Two officers went to Schorr's apartment and took him
to Holy Spirit Hospital, where he was placed in a
"high security" room in the emergency department to
wait for an evaluation. When a crisis intervention
worker entered the room, Schorr pushed past the worker
and escaped from custody. Schorr's family called his
apartment and, finding him there, called the police to
report his whereabouts. Two officers were again
dispatched to Schorr's apartment to take him back into
custody and to Holy Spirit Hospital. A violent
confrontation ensued and Schorr was shot and killed by
one of the officers.

(Doc. No. 63 at 1-2.)

II. Scope of Review

Plaintiffs, Keith and Susan Schorr, filed this civil action against
several Defendants as a result of the events surrounding the death of
their son, Ryan Schorr. The remaining Defendants are West Shore Regional
Police Commission ("Commission"), Howard Dougherty, Chief of West Shore
Regional Police Department ("Dougherty"), Cumberland County, and Holy
Spirit Hospital. The Commission and Dougherty moved to dismiss Counts I,
V, VI, and VII of Plaintiffs' complaint; Cumberland County moved to
dismiss Counts IV, V, VI, and VII of Plaintiffs' complaint. The
Magistrate recommends denying the Commission and Dougherty's motion to
dismiss Count I of the complaint and granting the motions to dismiss
Counts IV, V, VI, and VII of the complaint against all remaining
Defendants.

Plaintiffs bring Count V against the Commission pursuant to Title II of
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (2003)
("ADA" or "Title II"). The Magistrate recommends dismissing this claim,
to which Plaintiffs object. In Count V of their complaint, Plaintiffs
allege that "Defendants violated Ryan Schorr's federally guaranteed right
to be free from discrimination on the basis of disability by failing to
make reasonable modifications to their policies, practices and procedure
to ensure that his needs as an individual with a disability would be
met." (Doc. No. 24 at 13.) Defendants do not appear to contest whether
Schorr qualifies as a disabled individual under the ADA, but only whether
the ADA applies to the facts of this case. Defendants characterize the
claim as alleging failure to accommodate "while making an arrest" and
argue that arrests "do not fall within the ambit of the ADA." (Doc. No.
35 at 9-11.)

On its face, by guaranteeing disabled persons full access to all of the
"services, programs, or activities of a public entity," the Act appears
to provide protection from a very broad range of discriminatory
treatment. Although to the lay reader this language may suggest only
commonly available and publicly shared accommodations such as parks,
playgrounds, and transportation, the Act in no way limits the terms
"services, programs, or activities," and appears to include all core
functions of government. Among the most basic of these functions is the
lawful exercise of police powers, including the appropriate use of force
by government officials acting under color of law. Plaintiffs allege that
these essential government functions are activities covered by the ADA
and that the failure of Defendants to properly train the police for
peaceful encounters with disabled persons caused decedent Schorr to be
discriminated against and excluded from these government services.
Nothing in the language of the statute suggests that the ADA does not
extend to this type of governmental activity.

Indeed, in enacting the ADA, Congress found that "individuals with
disabilities continually encounter various forms of discrimination,
including . . . failure to make modifications to existing facilities and
practices." 42 U.S.C. § 12101(a)(5). Congress stated that one purpose
of the ADA was "to provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabilities."
42 U.S.C. § 12101(b)(1). Thus, the ADA is a remedial statute,
designed to eliminate discrimination against the disabled in all facets
of society. As a remedial statute, it must be broadly construed to
effectuate its purposes. Tcherepnin v. Knight, 389 U.S. 332, 335 (1967).

Other district courts have also found that a public entity violated the
ADA by discriminating against a disabled individual in its provision of
services, activities, or programs during the course of an arrest. See,
e.g., Calloway v. Glassboro Dept. of Police, 89 F. Supp.2d 543 (D.N.J.
2000) (finding ADA applicable to a situation where a deaf person was
subjected to police investigative questioning without the assistance of a
qualified interpreter); Lewis v. Truitt, 960 F. Supp. 175, 178 (S.D.Ind.
1997) (ADA claim exists in an arrest situation where plaintiff shows that
he is disabled, that the arresting officers knew or should have known of
the disability, and the officers arrested plaintiff because of legal
conduct related to his disability); Barber v. Guay, 910 F. Supp. 790, 802
(D.Me. 1995) (plaintiff's claim "that he was denied proper police
protection and fair treatment due to his psychological and alcohol
problems" during investigation and arrest stated a valid cause of action
under the ADA); Jackson v. Inhabitants of Sanford, 1994 WL 589617 (D.Me.
Sept. 23, 1994) (calling the municipal defendant's contention that the
ADA is inapplicable to arrests "plainly wrong" and holding that Title II
of the ADA applied to Plaintiff's discriminatory arrest and failure to
train claims).

The parties here have not addressed the Yeskey decision or the
decisions from other courts that have allowed similar claims to proceed
under the ADA. Rather, Plaintiffs, Defendants, and the Magistrate all
seem to agree that this dispute is governed by the Fifth Circuit decision
in Hainze v. Richards, 207 F.3d 795 (5th Cir. 2000). Analyzing
Plaintiffs' claim under Hainze and Gohier v. Enright, 186 F.3d 1216 (10th
Cir. 1999), the Magistrate recommended dismissing Plaintiffs' ADA claim
on the grounds that the ADA does not apply to actions taken by police
officers during an arrest. (Doc. No. 63 at 13-15.)*fn4 Plaintiffs do not
challenge the Hainze decision, but rather argue that the police encounter
in this case was not an arrest controlled by the decision. Further,
Plaintiffs argue that because the activity complained of, the refusal to
modify practices and procedures to accommodate the disabled, occurred
before the police encounter, application of the ADA in this case would
not run afoul of Hainze.

The Hainze court was presented with a claim similar to the one here,
that the defendant county "failed to reasonably accommodate [plaintiff's]
disability by failing and refusing to adopt a policy protecting the
well-being of [plaintiff] as a person with a mental illness in a mental
health crisis situation," yet the court declined to specifically address
it. 207 F.3d at 801 (internal quotation marks omitted). Rather, the court
simply stated:

Despite Hainze's claims, we hold that Title II does
not apply to an officer's on-the-street responses to
reported disturbances or other similar incidents,
whether or not those calls involve subjects with
mental disabilities, prior to the officer's securing
the scene and ensuring that there is no threat to
human life. Law enforcement personnel conducting
in-the-field investigations already face the onerous
task of frequently having to instantaneously
identify, assess, and react to potentially
life-threatening situations. To require the officers
to factor in whether their actions are going to comply
with the ADA, in the presence of exigent circumstances
and prior to securing the safety of themselves, other
officers, and any nearby civilians, would pose an
unnecessary risk to innocents. While the purpose of
the ADA is to prevent the discrimination of disabled
individuals, we do not think Congress intended that
the fulfillment of that objective be attained at the
expense of the safety of the general public.

Id.

The Hainze rationale for disallowing ADA claims when the challenged
conduct occurred during "exigent circumstances" does not apply here, and
this Court believes that the Third Circuit would agree. Plaintiffs have
not brought this action against any of the officers involved, nor are
they challenging the degree of force used by the officers, and any
exigent circumstances at the time of arrest are therefore irrelevant.
Rather, Plaintiffs have brought their ADA claim against the Commission
for failing to properly train those officers, resulting in the death of
Schorr. The alleged non-compliance with the training requirements of the
ADA did not occur the day that the officers shot Ryan Schorr; it occurred
well before that day, when the Defendant policy makers failed to
institute polices to accommodate disabled individuals such as Schorr by
giving the officers the tools and resources to handle the situation
peacefully.

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